PO Box 788 Strawberry Hills NSW 2012 Tel: (02) 9215 … · Aboriginal and Torres Strait Islander Arts Board, Australia Council PO Box 788 Strawberry Hills NSW 2012 Tel: (02) 9215

..Aboriginal and Torres Strait Islander Arts Board, Australia CouncilPO Box 788Strawberry Hills NSW 2012Tel: (02) 9215 9065Toll Free: 1800 226 912Fax: (02) 9215 9061Email: [email protected]

ISBN: 0 642 47240 8 Writing Cultures: Protocols for Producing Indigenous Australian Literature

cultures. W R I T I N G . . . . .Protocols for Producing Indigenous Australian

Literature

An initiative of the Aboriginal and Torres Strait

Islander Arts Board of the Australia Council

contentsIntroduction 1

Using the Writing Cultures guide 2What are protocols? 3What is Indigenous literature? 3Special nature of Indigenous literature 4

Indigenous heritage 5Current protection of heritage 6

Principles and protocols 8Respect 8

Acknowledgement of country 8Representation 8Accepting diversity 8Living cultures 9

Indigenous control 9Commissioning Indigenous writers 9

Communication, consultation and consent 10Creation stories 11

Recording oral stories 11Protecting oral stories from authorised copying 12

Sensitivity of content 12Writing life stories 12

Interpretation, integrity and authenticity 13Interpretation 13

Use of terminology 13Research 13

Authenticity 13Editing 14Publishing 15

Web publishing 15Illustrating Indigenous books 15Selecting cover images 15

Secrecy and confidentiality 16Representation of deceased people 16Secret and sacred material 16Personal privacy 17

Attribution 17Individual and community contributors 17

Proper returns 17Continuing cultures 17

Recognition and protection 18Resources 18

Copyright 20What is copyright? 20How does copyright protect literature? 20

Who owns copyright? 20What rights do copyright owners have? 21

Collaborative works 21Communal ownership vs. joint ownership 21

How long does copyright last? 22What is the public domain? 22What are moral rights? 22Licensing for publication 22

Assigning copyright 23Publishing contracts 23

Managing copyright to protect your interests 23Copyright notice 23Moral rights notice 24

When is copyright infringed? 24Fair dealings provisions 24Crown use of literary work 24Library copying 25Educational copying 25

Lending rights 25Public lending right 25Educational lending right 25

Further copyright information 25Copyright collecting societies 26

Follow up 28Applying the protocols 28Respect 28

Publishing stories and ideas 29Indigenous control 29Communication, consultation and consent 29

Creation stories 29Recording oral stories 29Writing life stories 29

Interpretation, integrity and authenticity 30Interpretation 30Editing 30Publishing 30IMPORTANT NOTICE - The information included in this guide is current as at Sydney, May 2002.

This guide provides general advice only. It is not intended to be legal advice. If you have a particular legalissue, we recommend that you seek independent legal advice from a suitably qualified legal practitioner.

© Commonwealth of Australia 2002

Writer:Terri JankeSolicitorTerri Janke & CompanyEntertainment, Cultural Heritage and Media Lawyers and Consultants

Peer Review:Dr Anita HeissCurringa Communications

Design & Typesetting: L&L Design & Production

Artwork: joorroo, Darrell Sibosado, 2002Photography: Fiona Prince, 2002

I N T R O D U C T I O N - 1

. . .introduction

Secrecy and confidentiality 31Representation of deceased people 31Secret and sacred material 31Personal privacy 31

Attribution 31Proper returns 32Continuing cultures 32Recognition and protection 32Copyright 32

References 34

Bibliography 36

Contacts 38

Acknowledgments 41

As an Aboriginal writer I am constantly awareof literature being the ‘little sister’ to otherartforms like visual arts, theatre, music anddance. The ‘little sister’ syndrome exists largelydue to the fact that literature is a relatively newartform for Aboriginal people, visual andperforming arts being part of our culture sincethe beginning of time...

We have now mastered the same languagethat was once used against us – describing usas barbaric and savage – and we haveempowered ourselves to tell our stories, in ourstyles, for our people.

Dr Anita Heiss.1

Even though publishing has only become accessibleto Indigenous writers in the past 50 years, literatureis a vital part of Indigenous culture. Writing, forIndigenous Australian people, is largely aboutexpressing cultural belonging – however, it goesbeyond that.

In Indigenous cultures the writer is a custodian ofculture, with obligations as well as privileges.

As part of their practice, Indigenous writers take onresponsibilities as educators, informants andconveyors of the diversity of Aboriginal and TorresStrait Islander cultures. Writing encompasses severalobligations for Indigenous authors and these maybring about conflict in the creation and publicationof their literary works. Writing Cultures looks atsome of these issues.

Indigenous people’s right to own and control theircultural heritage is known as ‘Indigenous culturaland intellectual property rights’. The term is used inOur Culture: Our Future 2 to refer to those rights asthey are developing within international law. Since1998, when Our Culture: Our Future was firstpublished, the term ‘Indigenous heritage rights’ hasgained more favour in the international arena. InWriting Cultures we use ‘Indigenous heritage’ torefer to these rights.

Indigenous heritage comprises all objects, sites andknowledge transmitted from generation togeneration. Indigenous people’s heritage is a livingheritage. An Indigenous person’s connection withthe land, water, animals, plants and other people isan expression of cultural heritage. Writing,performing, song, the visual arts and more recently,new media, are ways of transmitting Indigenouscultural heritage.

As primary guardians and interpreters of their cultures,Indigenous people have well-established protocols forinteracting with their cultural material. New situationswill also require cultural protocols. Writing Culturesguides the reader through many of these protocols.

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Writing Cultures is one in a series of fiveIndigenous protocol guides published by theAustralia Council’s Aboriginal and Torres StraitIslander Arts Board. The guides reflect thecomplexity of Indigenous Australian culture, andprovide information and advice on respectingIndigenous cultural heritage. Although each of theguides address cultural protocols specific to anIndigenous artform, they are shaped by the sameunderlying principles – the backbone of theprotocols. The five guides in the series are:

• Song Cultures

• Visual Cultures

• Performing Cultures (Drama/Dance)

• New Media Cultures

• Writing Cultures.

The Indigenous protocol guides will have relevancefor everyone working in or with the Indigenous artssector, including:

• Indigenous and non-Indigenous artists

• People working within related fields ofIndigenous artform practice

• Federal and state government departments

• Industry agencies and peak organisations

• Galleries, museums and arts centres

• Educational and training institutions

• Indigenous media and targeted mainstream media.

We hope Indigenous people, and those workingwith Indigenous people, will be inspired to use theprinciples as a framework for developing protocolsappropriate to their specific drama and danceprojects, language groups, regions, clans and communities.

We also hope the guides will spark debate andthat additional protocols will be developed acrossartforms. Your comments and ideas can beforwarded to [email protected] or DirectorAboriginal and Torres Strait Islander ArtsAustralia Council PO Box 788 Strawberry Hills NSW 2012

Using the Writing Cultures guide

Writing Cultures is written as a first point ofreference in planning a work with Indigenouspractitioners, or using Indigenous cultural material.When you need specific advice on the culturalissues of a particular group, we recommend youeither speak to people in authority, or engage anIndigenous cultural consultant with relevantknowledge and experience.

The Introduction defines protocols as used in this guide, and looks at the special nature ofIndigenous literature.

The next section, Indigenous Heritage, is animportant overview of the issues that inform thedevelopment of Indigenous protocols. It looks at thecomplex web of relationships in IndigenousAustralia, and how this might impact on theplanning of a writing project. It also chartsinternational initiatives for the protection ofIndigenous cultural and intellectual property rights.

The key section, Principles and Protocols, presentsnine principles we have developed to support theprotection of Indigenous cultural heritage. There isvaluable information on protocols specific to the useof cultural heritage material in writing practice. A number of case studies and commentaries fromIndigenous writers identify pitfalls and offer advice.

The Copyright section contains general information and advice on the main law inAustralia governing the use and reproduction of art and cultural expression.

Follow up provides a checklist of key points toconsider when developing protocols for a writingproject. It offers different and more specificinformation than the preceding sections. Wetherefore suggest you use the points outlined herealongside the Principles and Protocols andCopyright sections before developing a checklist foryour own project or practice.

We have also included a list of Contacts to beused as starting points for accessing relevantpeople and information.

What are protocols?

Protocols are appropriate ways of using Indigenouscultural material, and interacting with Indigenouspeople and their communities. Protocols encourageethical conduct and promote interaction based ongood faith and mutual respect.

Indigenous protocols arise from value systems andcultural principles developed within and acrosscommunities over time.

It is important to note the diversity and complexity of the many different Indigenous cultures inAustralia. Ways of dealing with issues and culturalmaterial may differ from community to community.There are also many different protocols across thediversity of urban, rural and remote communities.

While it is not possible to prescribe universal rulesfor working with Indigenous artists and theircommunities, there are some fundamental principleswithin which to conduct respectful work.

The protocols outlined in Writing Cultures areshaped by nine principles. The protocols are, by definition, ways of actioning these principles.

For example, a cultural protocol to action theunderlying principle of respect is to acknowledgethe Indigenous country and custodians at the site ofeach spoken word performance, launch or literaryevent, and in the acknowledgment of a publishedtext about a specific Indigenous country.

Writing Cultures identifies many specific protocolswhich can be applied or adapted by writers,publishers, arts organisations, cultural institutionsand others working with Indigenous literature.

Writing Cultures also aims to formally identify issuesarising from the interaction between Indigenouscultural concerns and the law protecting the rightsof authors. The Australian legal system incorporatessome but not all of these concerns.

While protocols differ from legal obligations,Writing Cultures outlines the current copyright lawframework. The process of following the protocolssupports the recognition of Indigenous heritagerights. It encourages culturally appropriate working practices, and promotes communicationbetween all Australians with an interest inIndigenous literature.

What is Indigenous literature?

Indigenous literature in an Australian context refersto the written word and text produced byAboriginal and Torres Strait Islander people.

Indigenous literature crosses a range ofgenres including:

• short stories• plays• novels/novellas• non-fiction, including essays and opinions• poetry• autobiography/biography• community and oral histories• children’s books.

. . .

. . .

I N D I G E N O U S H E R I T A G E - 5

Indigenous literature is an important means ofexpressing Indigenous heritage – past, present andfuture. Indigenous heritage, enshrined in Indigenouscultural and intellectual rights, is discussed at lengthin Our Culture: Our Future.8

The literary and publishing sector can adopt a ‘bestpractice’ approach by encouraging respect for the cultures of Indigenous Australians. It can do this by acknowledging their innate value, their difference from other cultures, and byrespecting Indigenous ownership and control ofIndigenous heritage.

All Indigenous artists are responsible forsafeguarding cultural knowledge and expression.They need to ensure that Indigenous cultures, bothin the past and today, are protected andmaintained in their works. In this way these culturescan be passed on to future generations.

There is not one, but many Aboriginal or TorresStrait Islander cultures. These cultures havedeveloped over thousands of years and have been passed down from generation to generation. Despite the enormous impact of theinvasion in 1788, Indigenous cultures havecontinued to develop.

An Indigenous person’s connection to Indigenousheritage is expressed in contemporary life throughhis or her relationship with land, waterways,animals and plants, and his or her relationships withother people.

Aboriginal and Torres Strait Islander people have awell developed and complex web of relationshipsbased on family ties, clan belonging, languagegroup affiliations, and community, organisation and government structures. A range of authoritystructures exists across urban, regional and remotecommunities. It is important to acknowledge thecomplexity of Indigenous Australia when negotiatingthe use of Indigenous heritage for a writing project.

The process of following the protocols not onlysupports Indigenous heritage rights, but alsopromotes diversity and new initiatives in Indigenousliterature, and culturally appropriate outcomes.

4 - W R I T I N G C U L T U R E S

Special nature of Indigenous literature

The story is the most powerful thing on earthbecause it will last as long as there are twopeople left on it. And when there is only oneshe will whisper these stories to remind herselfof what has been lost and, in that way, shewill have the company of her ancestors.

Bruce Pascoe.3

Knowledge, history and other cultural informationhas been orally transmitted through manyIndigenous generations. Now, Indigenous writinghas an important place in the transmission ofIndigenous culture.

Some of the reasons Indigenous writers put pen topaper include:

• facilitating ongoing transmissionof information

• providing reading materials forIndigenous readers

• recording community histories• recording oral histories/life stories• community ownership of stories• cultural reclamation and maintenance• language reclamation and maintenance• entertainment• as a form of personal and community healing

(e.g. stories of the Stolen Generation)• providing an authentic voice in Australian

literature and the literary scene• educating the broader community about

Indigenous issues• educating Indigenous communities on local and

national Indigenous issues.

Over the past ten years the development ofIndigenous writing has resulted in a range of workson contemporary themes, such as Glenys Ward’sWandering Girl 4 and Kim Scott’s Benang.5

There are many reasons to write. I partly writeto think things through in the form of a story,and to seek a deep communication with thefuture and the past; attempting to understandmy own ancestors, and attempting tocommunicate with integrity to both present andfuture readers among my people.

Kim Scott.6

Indigenous writers also pen poems, stories andnovels on themes that are not solely aboutIndigenous issues. For instance Aboriginal poetNorm Newlin also writes poetry inspired by love.

Literature and oral stories, like other aspects ofIndigenous heritage, often stem from a social andcultural base. In some cases, stories may relate to agroup or groups of Indigenous people where oneauthor cannot be singled out from group ownership.The story of the Wagilag Sisters is an example of aculturally-based story that has ancient origins andspans a number of clan groups.

Indigenous Australians are concerned there is no respect for their Indigenous cultural knowledge,stories and other expression in the wider cultural environment.

Concerns include the current legal framework thatdoes not promote or protect the rights of Indigenouspeople – particularly to own and controlrepresentation and dissemination of their stories,knowledge and other cultural expression.7

A further concern is the passing on of stories andIndigenous knowledge to outsiders. In Indigenouscommunities, the telling of stories is a right given toparticular and qualified individuals. The re-telling ofthose stories by unqualified outsiders may beoffensive to customary law beliefs.

Indigenousheritage

The Draft Declaration on the Rights of IndigenousPeoples states, in Article 29:

Indigenous peoples are entitled to therecognition of the full ownership, control andprotection of their cultural and intellectualproperty. They have the right to specialmeasures to control, develop and protect theirsciences, technologies and culturalmanifestations, including human and othergenetic resources, seeds, medicines,knowledge of the properties of fauna andflora, oral traditions, literatures, designs andvisual and performing arts.10

The Mataatua Declaration on Indigenous Culturaland Intellectual Property Rights, in Article 8, urgesIndigenous people to ‘develop a code of ethicswhich external users must observe when recording(visual, audio, written) their traditional andcustomary knowledge’.11

Draft Principles and Guidelines for the Protection ofthe Heritage of Indigenous People (1993) wereadopted by ATSIC’s Indigenous Reference Groupin1997.12 Article 39 states:

Artists, writers and performers should refrainfrom incorporating elements derived fromIndigenous heritage into their works without theinformed consent of the Indigenous owners.

In January 2002, the World Intellectual PropertyOrganisation’s International Forum, IntellectualProperty and Traditional Knowledge: Our Identity,Our Future, held in Muscat, Oman, adopted aDeclaration recognising that ‘traditional knowledgeplays a vital role in building bridges betweencivilisations and cultures, in creating wealth and inpromoting the human dignity and cultural identity oftraditional communities’.13

Internationally, the World Intellectual PropertyOrganisation has established an intergovernmentalcommittee on intellectual property and geneticresources, traditional knowledge and folklore todiscuss intellectual property issues that arise in thecontext of:

• access to genetic resources and benefit-sharing

• protection of traditional knowledge, innovationsand creativity

• protection of expressions of folklore.14

Regionally, a model law for protecting traditionalknowledge in the Pacific was drafted andcompleted in July 2002. The Pacific RegionalFramework for the Protection of TraditionalKnowledge and Expression of Culture establishes‘traditional cultural rights’ for traditional owners oftraditional knowledge and expression of culture.15

The prior and informed consent of the traditionalowners is required to:

• reproduce or publish the traditional knowledgeor expressions of culture

• perform or display the traditional knowledge orexpressions of culture in public

• make available online or electronically transmitto the public (whether over a path or acombination of paths, or both) traditionalknowledge or expression of culture

• use the traditional knowledge or expression ofculture in any other form.

I N D I G E N O U S H E R I T A G E - 76 - W R I T I N G C U L T U R E S

Our Culture: Our Future

Indigenous cultural and intellectualproperty rights refers to Indigenouspeople’s rights to their cultural heritage.

Heritage comprises all objects, sites andknowledge – the written nature or usewhich has been transmitted orcontinues to be transmitted fromgeneration to generation, and which isregarded as pertaining to a particularIndigenous group or its territory.

Indigenous people’s heritage is a livingheritage and includes objects,knowledge, artistic, literary, musical andperformance works, which may becreated now or in the future, and basedon that heritage.

Indigenous cultural and intellectualproperty rights include the right to:

• own and control Indigenous culturaland intellectual property

• ensure that any means of protectingIndigenous cultural and intellectualproperty is based on the principle ofself-determination

• be recognised as the primaryguardians and interpreters of theircultures

• authorise or refuse to authorise thecommercial use of Indigenouscultural and intellectual propertyaccording to customary law

• maintain the secrecy of Indigenousknowledge and other cultural practices

• full and proper attribution

• control the recording of culturalcustoms and expressions, theparticular language which may beintrinsic to cultural identity,knowledge, skill, and teachingof culture.

For a full list of rights seeOur Culture: Our Future 9

Current protection of heritage

Australia’s current legal framework provides limitedrecognition and protection of these rights. Our Culture: Our Future recommended significantchanges to legislation, policy and procedures. As yet there has been no formal response to theserecommendations from the Australian government.Much of the rights recognition has been done at anindustry and practitioner level, through thedevelopment of protocols and use of contracts tosupport the cultural rights of Indigenous people.

Across the world, Indigenous people continue tocall for rights at a national and international level.Indigenous people are developing statements anddeclarations which assert their ownership andassociated rights to Indigenous cultural heritage.These statements and declarations are a means ofgiving the world notice of the rights of Indigenouspeople. They also set standards and develop anIndigenous discourse that will, over time, ensure thatIndigenous people’s cultural heritage is respectedand protected.

. . .

P R I N C I P L E S A N D P R O T O C O L S - 9

People working in the literary field are encouragedto foster diversity of expression in Indigenous writing.

Living cultures

Indigenous cultures are living and evolving entities,not simply historical phenomena.

Publishing stories and ideasThe effects of publication of anIndigenous story – whether sacred,closed or general – should be discussedprior to publication. Books, the Internet,journal articles and magazines are partof the mass media, and are open forgeneral consumption.

Once publicly released, it is difficult tocontrol how a story might be embraced,adopted and engrained withindominant and other cultures. There arealso legal limits in being able to controlthe general expression of Indigenousstories and knowledge once thecopyright period expires. For example,ancient Greek stories, fairytales andBible stories are all re-told in manydifferent ways and languages by writersof varying cultural backgrounds.

Using knowledge as part of the generalspread of ideas is a concept that oftensits at odds with Indigenous notions ofholding and disseminating knowledge.It is a right given to people based ontheir standing in an Indigenous society.

Indigenous controlIndigenous people have the right to self-determination in their cultural affairs, andexpression of their cultural material. There are manyways in which this right can be respected in thedevelopment and production of literary works.

One significant way is to discuss how Indigenouscontrol over a project will be exercised. This raisesthe issue of who can represent clans and who cangive clearances of traditionally and collectivelyowned material.

Speaking to the right people is very important.Indigenous communities, whether regional, urban orremote, have an infrastructure of organisations andindividuals who can advise on a range of issues – including guidance about locating Indigenouspeople with authority to speak for specificIndigenous cultural material.

If your project involves a visit to Aboriginal lands or outer Torres Strait Islands, permission must beobtained from the local Land Council or Trust, or therelevant Community Council. For a list of Indigenousauthorities see the National Directory of Aboriginaland Torres Strait Islander Organisations.17

Some other useful starting points for inquiries include:

• the relevant individuals or family members

• elders and custodians of relevant Indigenousclans and groups

• Indigenous language centres

• Indigenous publishing houses

• the Australian Institute of Aboriginal and TorresStrait Islander Studies

• Aboriginal Land Councils

• Aboriginal and Torres Strait Islander Commission

• Torres Strait Regional Authority

• Island Coordinating Council

• Indigenous Unit of the Australian FilmCommission

• Indigenous theatre companies

• Indigenous media organisations

• Indigenous curatorial staff at local keepingplaces, state and national galleries, museumsand libraries.

It can also be prudent to involve Indigenous peoplein all stages of writing projects, including Indigenouswriters, community members, storytellers and editors.

Commissioning Indigenous writers

When engaging Indigenous writers to participate ina project, including writing assignments andspeaking engagements, most organisations use theATSIC definition of Aboriginal identity as a guide.

. . .


The principles outlined below are a framework forrespecting Indigenous heritage:

• Respect

• Indigenous control

• Communication, consultation and consent

• Interpretation, integrity and authenticity

• Secrecy and confidentiality

• Attribution

• Proper returns

• Continuing cultures

• Recognition and protection.

In the following pages, under each of theseprinciples, we have suggested protocols for usingIndigenous cultural material, and interacting withIndigenous writers and Indigenous communities.

Respect Respectful use of Indigenous cultural material,including stories, traditional knowledge andinformation about life experience, is a basicprinciple. It is important to consider this whendeveloping Indigenous literary works for publicationand wide dissemination.

Acknowledgment of country

Indigenous Australians, the Aboriginal and TorresStrait Islander people, are the original inhabitants of Australia.

When organising a book launch or literary event, it is respectful to seek the consent of the Indigenousowners of the land.16

If consent is given, it is respectful to acknowledgecountry and custodians at the site of each spokenword performance, book launch, storytelling orliterary event, and in the acknowledgment of apublished text about a specific Indigenous country.

Seek advice from the Indigenous community on thepreferred manner of acknowledgment.

Representation

Representation of Indigenous cultures should reflect Indigenous cultural values and respectcustomary laws.

It is respectful to write and speak about Indigenouscultures in a manner preferred by those cultures,avoiding derogatory or outdated terms andperspectives. It is important to consult with relevantgroups about preferred language and terms.

Accepting diversity

There is great diversity of experience and culturalcontext within Indigenous communities. Indigenousliterature reflects this diversity in the genre, subjectmatter and cultural setting the Indigenous writermight choose.

principles andprotocols


Creation stories

Creation stories or Indigenous Dreaming Histories– referred to by different Indigenous groups as theJukurrpa, Bugari or Altjeringa 22 – are important toIndigenous cultures.

It is protocol to consult with cultural custodians of a story and other community members. There may also be one or more groups that havecustodianship of a story. Consultation with, andconsent from each identified group should besought. Be prepared to reconsider your project if consensus cannot be reached.

Under copyright law, it is not an infringement torefer to another writer’s work. Creation stories thatare published have copyright protecting theexpression. However, it is possible for a writer toadapt a story, tell it in a different context or usedifferent words, creating copyright in another form.It is also possible for a writer to include or writeabout creation stories without following the correctIndigenous protocol of seeking permission from thepeople in authority.

If the writing of creation stories involves the verbatimtranscription of an oral story from specific informants,then permission, attribution and ownership ofmaterial should always be recognised.

Should non-Aboriginal writers be writing Aboriginalcreation stories? This issue is discussed by Dr AnitaHeiss in Writing About Indigenous Australia:Some issues to consider and protocols to follow:a discussion paper.23 Some Indigenous writers andcommunity people strongly believe that Indigenouspeople should exclusively write creation stories.24

The best approach for a writer in this situation is to get prior permission from the relevant Indigenouscustodians of creation stories and once obtained,involve them in the process of writing, editing and publication.

Pat Mamanyjun Torres notes that the process shewent through to publish The Story of Crow in 1987required continual dialogue with the custodians ofthe story. She says:

During my initial research period, approval wasobtained from Auntie Magdalene for the futurepublication of this material in a book format sothat children could learn about our culture. At alltimes throughout the development of the materialher approval was sought for the working draftsand eventually the finished product.25

Many Indigenous writers make draft copiesavailable, before publication, to the relevantIndigenous people and family members for comment.

Recording oral stories

Traditionally, Indigenous stories have been orallytransmitted and passed on through the generationsvia the art of storytelling. Committing these stories tomaterial form now creates a copyright interest in theexpression of the story. In the past, there have beeninstances where non-Indigenous individuals haveworked with Indigenous people to record their clanand creation stories. Copyright has belonged in thewritten expression, attributing the non-Indigenousperson as the sole writer and copyright owner.Indigenous people see ownership of stories andinformation differently.

Copyright does not protect oral stories if therequirement of material form is not met. Hence,people writing about what you said will have acopyright interest in the written form even if theircontribution to the written form is minimal. You may not be able to stop them from writing yourideas, unless you told them in confidence. If youtold them in confidence, and they knew it wasconfidential, you may be able to stop thempublishing your ideas by taking an action in breachof confidential information.26


The current practice of the Australia Council requiresall Indigenous participants to provide a letter ofsupport confirming their Aboriginal or Torres StraitIslander identity from an Indigenous organisation.18

Discuss copyright ownership at the outset. Thefollowing factors may be relevant in discussions:

• nature of the commission

• nature of subject matter

• whether it is a collaboration

• fee for services.

Communication,consultation and consentCommunication and consultation with the relevantIndigenous people in authority, and their consent,will need to be sought for each project.

According to Bruce Pascoe:

Consent by both non-Indigenous andIndigenous writers is a priority. People wantingto write about Indigenous people shoulddiscuss their artistic ideas with Indigenousfriends and acquaintances as well asconsulting protocols. If the non-Indigenouswriter doesn’t know any Indigenous people toconsult with then that is a great reason toabandon the project.19

Kim Scott discusses issues within theconsultation process:

It ’s difficult to know how to consult adequatelyin many instances. So there’s great need fortrust. And the authority is given by genealogicaldescent, by ‘connection’ to community andplace, and by the validation of elders.20

Jackie Huggins advises non-Indigenous writers whenconsulting and seeking consent:

One word of caution though – don’t expectAboriginal people to easily welcome you intotheir world. Some of us will be more open andtolerant than others. There is a long history ofviolence, mistrust, guilt and fear that cannot beerased overnight. Know when you arebecoming an intruder rather than anaccomplice. Do some homework first. Readbooks, watch films, do Aboriginal studiescourses. You should never expect Aboriginalpeople to do all the education because it ’sunfair and a personal drain... If there is trust,respect and genuine interest, one will possibly get past the first encounter andcontinue a dialogue.21

Some protocols identified by Indigenous writers asimportant to the communication, consultation andconsent process include:

• The need to identify relevant people with whomto discuss the intended publication.

• When interviewing informants take good notes.If they provide photographs, recordings, newsclippings and other materials, these should belooked after and returned as soon as they haveserved their purpose.

• Keep appropriate/relevant Indigenous peopleinformed and advised, and where possible,provide regular updates.

• When the first draft or work has beencompleted, take it back to the Indigenouspeople you consulted for approval andconfirmation of facts.

• Be flexible with time – and understand that theconsultation process may be lengthy. Do notexpect to have a reply to a question in a day ora week. Each community will need time toconsider and consult.

. . .


Interpretation, integrityand authenticityIt is important for Indigenous culture that theinterpretation, integrity and authenticity of a story ismaintained. This means that Indigenous peoplewill need to be consulted on how Indigenousheritage is presented.

InterpretationInterpretation refers to how cultural material ispresented. This includes the perspective given andthe language used in relation to cultural heritageand the medium in which it is reproduced.

In the past, Indigenous cultural material has beensubject to interpretation by non-Indigenous people.

Today, as Indigenous people seek to re-assert andreclaim control over their cultural heritage material,Indigenous interpretation of the material is a way ofenhancing the cultural significance of the work.

Indigenous people should be given the opportunityto interpret and present their own cultures.

Some important questions to consider aboutinterpretation are:

• How will your writing affect the Indigenousgroup it is based on?

• Does it empower them?

• Does it expose confidential or personal andsensitive material?

• Does it reinforce negative stereotypes?

Use of terminologyWriters are encouraged to examine the terminologyused in Indigenous writing.

For instance, Pat Mamanyjun Torres notes instead ofusing ‘Dreamtime’ (a Westernised construction) forcreation stories, Indigenous language words shouldbe used such as Jukurrpa, Bugari and Altjeringa.28

The following references provide guidelines on theappropriate use of grammar and terminology inrelation to Indigenous people:

• Jackie Huggins, in her article ‘Respect v PoliticalCorrectness’ provides some guidance. For example, she states that ‘a’ is for apple,agile, anger, another, address and alphabet,but not for Aboriginal.29

• There is a list of terms in the Australian Societyof Authors’ paper, ‘Writing about IndigenousAustralia’ written by Dr Anita Heiss.30

• There is also a Style Manual for Authors, Editorsand Printers which sets out guidelines for thenon-discriminatory portrayal of Aboriginal andTorres Strait Islander people.31

Research

In the past Indigenous people have complained thatIndigenous culture has been falsely stated in texts.

It is important to make sure writing is based onsound research and facts that are credible.

The Australian Institute of Aboriginal and Torres StraitIslander Studies is a useful starting point for research.The premises are in Canberra and they also have awebsite with a catalogue of their library resourcesat www.aiatsis.gov.au

AuthenticityA major issue for authenticity is the appropriation or fabrication of an Indigenous identity to marketworks. This differs from the adoption of pseudonymsas it is calculated to exploit an identity for financialgain. A series of literary frauds have beenuncovered in the past five years, including aninstance where a non-Indigenous author created afalse identity and the resulting book was marketedand sold as Indigenous, although it was not writtenby an Indigenous author.


Protecting oral stories from unauthorised copying

Magabala Books suggests the following way ofprotecting rights when a story is first recorded:

Most Aboriginal stories are part of an oraltradition and have never been written down.If someone wishes to record a story (by writingit down or taping it) then the recorder couldclaim to be the copyright owner of the materialbecause they are the one who has written itdown. A way to control this would be for thestoryteller to argue that, as the story is theirs,the recorder should assign in writing thecopyright back to the storyteller, who can thenlicense the recorder to use the material incertain specified ways, such as for research orfor linguistic work.27

Sensitivity of content

Be aware of gender division of responsibility andknowledge in many Indigenous communities.Sensitive content such as secret and sacred materialor gender-based works may require specialcommunication procedures. These proceduresshould first be ascertained. Consultation may taketime depending on the sensitivity of the material.

Writing life stories

In writing life stories of Indigenous people it isimportant to respect the rights of the subject in termsof ownership and approval over the representationof the story.

The following questions arise:

• Who is in control of the representationof the story?

• Is there anything sensitive that needs to beremoved from the story – particularly in relationto events and cultural beliefs that involve other people?

case study

Writing livesAn Indigenous woman worked with aplaywright to create a play about herlife. The woman orally related her lifestory to the playwright who took notes.The oral transmission of the story doesnot constitute material form, which iscreated when the notes are made. The playwright used the notes as abasis to develop a plot.

He skillfully wrote more words andinterpreted the woman’s words into aframework suitable for production as aperformance. After completion, therewas a discussion about who ownedcopyright. The Indigenous woman hada legitimate claim to copyright in theplay, given she had provided notes andinformation on her life. However, theplaywright was also arguably entitled tosome copyright interest given he hadskillfully developed text and aframework for her story.

In the end the parties agreed that theIndigenous woman should owncopyright, however both should shareroyalties and be jointly attributed asauthors. In this way, the resulting playwas a collaborative work.

This example illustrates how copyrightlaw can affect the rights of Indigenouspeople to important cultural stories.However, these problems can be avoidedif issues are discussed at the outset andincluded in written agreements.

. . .


PublishingFew Indigenous writers have publishing deals withmainstream publishing companies. According toWilla McDonald:

For Indigenous writing to be accepted bywhite publishers, it usually needs to be writtenin a way that is understandable by mainstreamwhite Australians. The written word is part ofwhite culture, and comes with rules aboutgrammar, spelling and structure. Everything issifted through white filters.38

Most Indigenous writers come from outside themainstream and have limited knowledge of theprocesses involved in developing a manuscript forpublication. The publisher may have specificguidelines and style issues that are not applicableto Indigenous interpretation of works – for example,inhouse style of punctuation and grammar.

Publishers should make relevant inquiries toensure a writer who is promoted and marketed as ‘Indigenous’ is an Indigenous Australian. The ATSIC test of Aboriginality is recommended.

A sensitive issue is whether Indigenous writersshould compromise their cultural integrity during theeditorial and publishing process to get their workpublished. Indigenous writers state that while somepublishing companies are sensitive to Indigenousmanuscripts, there is a tendency to edit towardsgenre and mainstream audiences.

Publishers are encouraged to broaden theirunderstanding and appreciation of works that lieoutside of the mainstream view of literaryproduction. The publishing process must be amutual process of collaboration between the authorand the editor.39

There are few Indigenous publishing housescatering for the increasing number of new andemerging Indigenous writers seeking publication.The current houses are Magabala Books (Broome),

Aboriginal Studies Press (Canberra) and IAD Press(Alice Springs). The following areas are highlightedfor consideration when publishing.

Web publishing

Indigenous people are often concerned about thepublication of Indigenous heritage on the Internet.This is because of the digital nature of the form presented and the ease of copying. Before publishing material online, discussions with Indigenous people are recommended.

Illustrating Indigenous books

Visual elements are integral to many Indigenousstories. Sam Cook, an Indigenous illustrator, hasdeveloped a database of Indigenous illustrators and says it is important to work closely with theauthor in children’s book or story-based designs. She advocates ‘extra care and attention to detail’to ensure that Indigenous books have appropriateillustrations and authentic product.40

Selecting cover images

The selection of artistic works for book covers may need consultation with the author and other relevant people. It is important to be sure that the cover image is culturally appropriate andnot exploitative.

The use of traditional designs and motifs (Mimisand Wandjinas, for instance) raises issues forprotecting Indigenous heritage.

One author noted the draft cover layout for herwork included cultural images from areas inAustralia not related to her area, or the area wherethe novel was set. This caused her embarrassmentand if it had been published could have offendedthe cultural custodians of the images. She wasfortunate the publisher had sought her priorapproval – the image on the cover was changed to a more appropriate one.


Dr Anita Heiss considers authors appropriatingAboriginality do so for their own benefit.32 Suchactions have angered many Indigenous writers andthe Indigenous community generally.

The ASA recommends the introduction of a labellingsystem that would allow readers to know whenbooks are written primarily by Indigenous authors,and when they are a collaboration with non-Indigenous writers.

Editing

In working in a partnership situation withIndigenous communities or individuals it isimportant to understand that it is the communityor the individual who should have the powerto be the final censor of the work, not theeditor, translator or writer. Trust is the key to asuccessful outcome for all concerned.

Sally Morgan.33

The editorial process of a manuscript can have alarge impact on how the final document ispresented and interpreted. The editing process canaffect the authentic voice of Indigenous writers.34

For Indigenous writers there are concerns that non-Indigenous editors often misunderstand thecontent of their manuscripts, and often alterlanguage and style to cater for a mainstream non-Indigenous audience. Some issues include:

• editing of ‘Aboriginal English’ to make itgrammatically correct or to make it ‘High English’

• drawing plot and themes towards Westernisedconcepts of storytelling and morals

• editing sensitive material.

Sometimes people will share something very sensitive, but that doesn’t mean they want it included in a publication.

Other times someone may share a story whichis very sad and indicate that they want thisstory published, but after some thought changetheir minds. Such decisions must be respected.This is why it ’s important to have an editingprocess that allows lots of time for consultationso that people can really think about what theywant to say without feeling pressured tocommit to something they may later regret.

Sally Morgan .35

It would be most appropriate to have an Indigenouseditor work on an Indigenous author’s manuscript.However, given the limited numbers of Indigenouseditors (there are only three or four working full - timein the industry), this might be difficult.

Findings from an Australia Council survey showedthat respondents believed non-Indigenous editorscould capably edit Indigenous books. However, thereport highlighted the need for trained Indigenouseditors as a priority.36

The Literature Board of the Australia Council hasfunded an Indigenous editors’ training program toincrease the number of trained Indigenous editors.

case study

Jandamarra and the Bunuba Resistance The book Jandamarra and the BunubaResistance 37 published by MagabalaBook in 1995 was written by HowardPederson with custodian, BanjoWoorunmurra. The book accounts theresistance of the Bunuba people andrelates a history which was previouslyuntold. Copyright is shared by Pederson,a non-Indigenous writer andWoorunmurra. The book was edited bySandra Phillips, an Indigenous editor.

. . .


Clearly, copyright in the book would havebelonged to Mountford. The claim was based onan action for breach of confidence. That is, theresearcher had known the confidential nature of theinformation and the detriment it may cause to theinformant’s society, yet still published it. Thereforethe Pitjantjatjara were granted equitable relief tostop dissemination of the book where women,children and uninitiated people might find it.

This example illustrates the effect that publishingsacred or secret material may have on Indigenouscultures. In order to respect the cultural sensitivitiesassociated with sacred and secret information, thewider publication of this material should be restricted.

Personal privacy

The personal privacy of Indigenous people shouldbe respected. Personal and confidential informationmust not be disclosed without permission from allIndigenous people affected by the disclosure. Ask the individual, community or relatives of theindividual for permission. Observe closeconsultation and consent throughout the process.

Disclosure of personal information about anIndigenous person who has passed away shouldalso be cleared with family and community.

Attribution Indigenous people should be attributed for use oftheir cultural heritage material in stories. In manyinstances in the past, and even today, Indigenouspeople have been used as informants for research,evaluations and theses.

Today, Indigenous people are seeking greateracknowledgment than being recognised as mereinformants. They seek the right to be acknowledgedas owners of this knowledge and information. They also seek to have a greater share in benefitsgenerated from the use of their cultural stories.

Individual and community contributors

Under the moral rights provisions of the CopyrightAct 1968 (Cth), the right of attribution is recognisedfor creators. However, it is recommended thatcontributors also be attributed for their role in thedevelopment of a literary work.

It is also important to attribute the cultural source ofa story. For example, a story originating from aparticular clan group should be attributed in eachand every publication.

Proper returnsIndigenous people should share in the benefits andreceive proper returns for use of their culturalheritage material. When commissioning Indigenouswriters, fees should be paid at an appropriateindustry rate.

When using communally owned cultural heritagematerial, it is important to consider ways in whichthe clan or group can benefit from the use of theirmaterial. For example, you could provide copies ofthe published documents or conduct workshops foremerging writers.

Continuing culturesConsultation is an ongoing process. Cultures aredynamic and evolving, and the protocols withineach group and community will also change.

It is important to consider how you will maintainrelationships for future consultations. This mightinclude consultation, at a later date, for future usesof the work that were not envisaged during theinitial consultation.


Secrecy and confidentialitySome Indigenous cultural material is not suitable for wide dissemination on the grounds of secrecyand confidentiality. It is the responsibility of thewriter, and those working on writing projects, todiscuss any restrictions on use with the relevantIndigenous groups. Some issues to be aware of arediscussed below.

Representation of deceased people

The reproduction of names and images ofdeceased people in books may be offensive toIndigenous beliefs. Some Indigenous publishershave adopted the use of special warnings wherenecessary. For instance, IAD Press has adopted thispractice41 as has Aboriginal Studies Press. Thefollowing example is from the book, Love Againstthe Law, The Autobiographies of Tex and NellyCamfoo, published by Aboriginal Studies Press:

Readers should be aware that if members ofsome Aboriginal communities see the names orimages of the deceased, particularly theirrelatives, they may be distressed. Before usingthis book in such communities, the wishes ofsenior members should be established andtheir advice taken on appropriate proceduresand safeguards.42

The deceased’s family or community needsto be consulted so that the appropriate protocolsare observed.

Secret and sacred materialThe reproduction or unauthorised use of secret andsacred material may be a transgression ofIndigenous law.

‘Secret and sacred’ refers to information or materialthat, under customary laws, is:

• made available only to the initiated

• used for a particular purpose

• used at a particular time

• information/material that can only be seen andheard by particular clan members (such as menor women or people with certain knowledge).

The publication of sacred and secret material raisessensitive issues for Indigenous people. Some peoplequestion whether it is at all appropriate to publishsensitive material in a manner where it can bedisseminated widely.

One example that highlights concerns in this area isthe case of Foster v Mountford 43 involving the issueof published secret and sacred material collected inresearch. Charles Mountford undertook a field tripin 1940 into remote areas of the Northern Territory.The Pitjantjatjara people revealed tribal sites anditems of deep cultural and religious significance tothe anthropologist. Mountford recorded theinformation and later wrote a book, Nomads of theAustralian Desert ( Rigby, 1976), which wasdistributed for sale in the Northern Territory.

The book contained information that was of deepreligious and cultural significance to thePitjantjatjara men. The information was shown tohave been given to Mountford in confidence.The Pitjantjatjara people were concerned thatcontinued publication of the book in the NorthernTerritory could cause serious disruption to theirculture and society should the book come into thehands of the uninitiated – women and children.The court allowed them an injunction to stop thesale of the book in the Northern Territory.

. . .

• The Greater Perspective: Protocol andGuidelines for the Production of Film andTelevision on Aboriginal and Torres StraitIslander Communities, Lester Bostock, SpecialBroadcasting Services, 2nd edn, 1997.

• The Australian Society of Authors has producedtwo discussion papers relating to issues ofIndigenous literature. Written by IndigenousPortfolio holder Dr Anita Heiss, the first set ofprotocols focuses on issues for non-Indigenouswriters to consider when writing aboutIndigenous Australian society and culture. The paper outlines what Indigenous writers have said on the topic and how non-Indigenouswriters have dealt with the issue. The paperincludes a basic code of ethics checklistcovering areas of representation, consultationand attribution.

The second paper, ‘Australian Copyright vs.Indigenous Intellectual and Cultural PropertyRights’, explores the shortfalls in the CopyrightAct’s protection of Indigenous cultural interests.

Both papers can be downloaded from the ASAwebsite at www.asauthors.org

P R I N C I P L E S A N D P R O T O C O L S - 1918 - W R I T I N G C U L T U R E S

Recognition and protectionThe increasing level of appropriation of Indigenousarts by non-Indigenous people has compelledIndigenous people to seek greater protection ofIndigenous arts, including the call for newlegislation recognising communal rights to culture.

case study

Mutant Message Down UnderIn 1994, Marlo Morgan’s best-sellingbook, Mutant Message Down Under,was marketed as a true account of the author’s real spiritual experiencesamong a group of AboriginalAustralians known as ‘Real People’. The book was supposedly inspired by the author’s experiences with Australian Aboriginals during a very brief stay in the early 1990s.Indigenous groups voiced their concerns about the misinformation and distortion of Aboriginal culture that the book represented.44

According to one journalist’s report,there is speculation over whetherMorgan ever made the journey describedin the book.45 Robert Eggington ofDumbartung Aboriginal Corporation,condemns the book as a ‘fabricatedfantasy’. He further notes that if Morganhas done what she claims to have donewithout proper consent, she would havebeen in breach of Indigenous laws soseriously that the breach is punishable bydeath under Aboriginal law.46

ResourcesA number of protocol documents have beenproduced in recent years to meet the needs of particular communities, organisations, industriesand situations. The following are selected as useful guides:

• Aboriginal and Torres Strait Islander Protocols forLibraries, Archives and Information Services,compiled by Alex Byrne, Alana Garwood,Heather Moorcroft and Alan Barries for theAboriginal and Torres Strait Islander Library andInformation Resources Network.

• Indigenous Arts Protocol: A Guide, IndigenousArts Reference Group,47 New South WalesMinistry for the Arts, 1998.

• Valuing Art, Respecting Culture: Protocols forWorking with the Australian Indigenous VisualArts and Craft Sector, by Doreen Mellor,published by the National Association for theVisual Arts, 2001.

• Our Culture: Our Future – Report on AustralianIndigenous Cultural and Intellectual PropertyRights, written and researched by Terri Janke,Michael Frankel & Company, Solicitors, forAustralian Institute of Aboriginal and Torres StraitIslander Studies, and the Aboriginal and TorresStrait Islander Commission, Sydney, 1998.

• Previous Possessions, New Obligations, a policydocument produced by Museums Australia in1994 to provide a way for museums toapproach Indigenous cultures. A plain Englishversion with case studies has been published.

• Taking the Time – Museums and Galleries, Cultural Protocols and Communities, A ResourceGuide, Museums Australia Inc. (Qld), 1998.

. . .

C O P Y R I G H T - 2120 - W R I T I N G C U L T U R E S

. . .It is important for Indigenous authors to develop anunderstanding of copyright so they can negotiaterights to their literary works under licence.

Authors retain copyright in their works for 50 yearsafter their death. Authors can license other peopleto reproduce their work under an agreement. Thisagreement will include certain terms such as the feefor use, the purpose of the agreement, the nature ofthe rights granted and the period of time theagreement will last.

Copyright owners need to think about who willcontrol their copyright after their death. Anotherissue to consider is who will continue to receive any royalties.

This section provides some general copyrightinformation for authors. For specific legal advice werecommend consulting a lawyer.

What is copyright?Copyright laws are the main laws in Australia thatgovern the use, production and dissemination oforiginal literary, dramatic and musical works. Rightsare provided to writers under the Copyright Act 1968 (Cth). There are no special laws for theprotection of Indigenous cultural and intellectualproperty under the Copyright Act.

How does copyright protect literature?It is not necessary to register for protection ofcopyright. Copyright protects literary, artistic, musicaland dramatic works as soon as they are created in amaterial form. This means that a work must exist in apermanent and tangible form.48 For example,copyright would exist in a book’s unpublishedmanuscript as a literary work.

Copyright protects the expression but not theunderlying idea. As copyright exists in the writtenexpression or, in the case of recordings, in therecorded form – Indigenous traditional 49

knowledge, dance, designs and stories that areorally or ephemerally transmitted are not protectedunder the standard copyright laws.

Who owns copyright?

As the person who records the work in a materialform, the writer is generally recognised as thecopyright owner of a literary work. For instance, the copyright in the poem ‘Journey’, written by Terri Janke, is owned by her although published inthe anthology Untreated: Poems by Black Writers.The publisher, in this example IAD Press, owns thecopyright in the collection.

There are some notable exceptions to the generalrule of ownership:

• An employer will own the copyright to worksproduced under a contract of employment unlessan alternative arrangement is agreed to inwriting. For example, if you are employed as aresearcher for an organisation and write a bookas part of your paid employment, it is likely thatthe copyright will be held by the organisation. If the work is commissioned and the writer is anindependent contractor, the copyright will remainwith the writer.

• The Government can assert copyright to worksproduced under its direction and control.However, if a writer receives a government grantfrom the Australia Council, for instance, the copyright will belong to the author.

Importantly, for copyright to exist, an individualauthor or group of authors must be identifiable.

With Indigenous cultural expression some storieshave been passed down through many generations.An individual author may not be able to beidentified, and indeed may not exist, because muchIndigenous cultural expression is communally owned.

As copyright, interpreted through the Act, belongsto individuals as creators of works, the communalownership of Indigenous heritage such as clandesigns or clan knowledge is not recognised.Protection of much of this material is therefore not guaranteed.

What rights do copyright owners have?

Copyright owners have the right to earn moneyfrom the use and copying of their literary work.The copyright owner of a literary work has theexclusive right to do all or any of the following:

(i) reproduce the work in a material form

(ii) publish the work

(iii) perform the work in public

(iv) communicate the work to the public

(v) make an adaptation of the work

(vi) do any of the above in relation to anadapted literary work.51

Collaborative worksUnder the Copyright Act, a ‘work of jointownership’ refers to a work resulting from thecollaboration of two or more authors and whereeach author’s contribution is equal to thecontribution of the other authors.51

The author must contribute to the work by way ofeffort, skill and labour. It is not enough to inspire or make suggestions. In this interpretation, the custodians of cultural stories will generally notbe recognised as the legal copyright owner of an Indigenous literary work that depicts clancreation stories.

Each author of a work of joint authorship ownscopyright in the resulting work.52 This means that each author must obtain the consent of the others before exercising any of their rights under copyright. For example, if an author wants to license the rights to reproduce acollaborative work to another party, he or she must get the consent of all the authors whoparticipated in the collaboration.

Communal ownership vs. joint ownership

In Bulun Bulun v R & T Textiles ,53 the court decidedthat artistic works containing Indigenous ‘traditionalritual knowledge’, handed down throughgenerations and governed by Aboriginal laws, are not works of joint ownership. Although underAboriginal laws the entire community may have aninterest in the particular work, and the designs andknowledge within the work, copyright does notrecognise the group as the owners.

The individual artist is recognised as the copyrightowner and may have a special obligation to theclan to deal with the copyright in the work, in waysthat are consistent with Indigenous law. Dependingon the circumstances, this obligation may beenforceable in the court. The nature of thisrelationship may also extend to knowledge in the written form.

copyright


How long does copyright last?Copyright only protects works for a limited period.For example, a literary work lasts for 50 years afterthe death of the author.54 Copyright assumes thatsome forms of Indigenous art and cultural expressionare in the public domain and are free for all to useand exploit.

What is the public domain?Once copyright lapses, the work is said to be inthe public domain. The law no longer preventsanyone from accessing and exploiting the material.For example, old stories that are out of copyrightcan be reproduced without the consent of thecopyright owner. Indigenous people’s right to cultureexists in perpetuity. To respect Indigenous culturalheritage, it may be necessary to get permission touse Indigenous stories even though, legally, they arein the public domain.

What are moral rights?The moral rights provisions under the Copyright Actprovide some new ways to challenge derogatorytreatment of Indigenous literary works. Moral rightswere introduced into the Copyright Act inDecember 2000.

These new laws provide the following rights to authors:

1. The right to be attributed as the author.

The author of a work has the right to be identifiedas the author where his or her work is reproducedin material form, published, performed, adapted,or communicated to the public.55

Authors can require their names be clearly andprominently reproduced alongside allreproductions of their works.56

2. The right not to have work falsely attributedto another author.

Authors can take action against parties whofalsely attribute others as the creators of their works.

3. The right of integrity.

Authors can take action against parties whotreat or alter their works in a derogatory way,causing harm to the author’s reputation.57

This may, for instance, be a work that is editedor altered in a way considered derogatory tothe writer. Whether or not the work has beentreated in a derogatory way is subject toreasonable defence.58

Prior to making any significant alterations to, oradaptations of a literary work, it is important toget the consent of the author in writing.

The Australian moral rights laws are new, and theirpotential to increase copyright protection forIndigenous writers has not been fully explored.

One important point about moral rights is that theyare individual rights. There is still no legalrecognition of communal ownership of Indigenouscultural material.

Licensing for publicationThe publisher of a literary work will needpermission from the writer to publish their work.Some points to consider are:

• Written contracts are preferred to oralagreements.

• Indigenous authors should be given theopportunity to consider contracts and obtainproper legal advice.

• The contract should be explained to Indigenousauthors and, if necessary, a translator be usedto explain the major issues of the contract.

• Appropriate royalties should be paid to the author.

. . .• If the work is to be altered or adapted for mass

production, authors should be given theopportunity to approve or otherwise reject thealteration or adaptation of their work.

It is a good idea to seek legal advice on copyrightlicensing issues.

Assigning copyrightCopyright can also be assigned. This means thatyou give your copyright to someone else. Theybecome the copyright owner and can authoriseothers to reproduce your literary work. Copyright isusually assigned under written agreement. Onceassigned, the author relinquishes copyright in his orher literary work.

Where possible, Indigenous authors should retainthe copyright in their works so they can maintaincontrol over reproduction.

It is important for Indigenous authors to checkagreements and make sure they are not assigningtheir rights away instead of alternatively licensinguse of their work.

Publishing contractsPublishers offer authors a publishing contract which isan agreement to license the reproduction of a literarywork. The contract may include terms such as:

• Royalties – Australian Society of Authors (ASA)Minimum Standards are encouraged

• Territory – which countries, for instance, will bethe subject of the right to reproduce

• Term – length of time the literary work willbe in circulation.

It is recommended that legal advice be sought oneach contract. Magabala Books has produced ashort information booklet on copyright, A Basic Guideto Copyright.59 This provides some useful informationon publishing contracts. Also, the ASA operates aContract Advisory Service which is funded through theLiterature Board of the Australia Council.

Managing copyright toprotect your interestsAs copyright exists as soon as a work is created, it is not a legal requirement to register copyright.However, certain precautionary practices canprovide good warning to potential infringers and notify them of where to get prior permission to copy.

It is important to keep good records of your works. It is a good idea to write your story down, or typeit into your computer.

Label all reproductions of the work clearly with thefollowing information:

• title of the paper, novel or short story

• writer

• date created

• copyright owners

• if applicable, cultural group or clan.

When authorising others to reproduce your worksmake sure that you use written agreements andkeep records of the rights you have granted, andwhere your works have been published. Ask forcopies of any journals or anthologies thatreproduce your work.

Copyright noticeYou should also include a copyright notice. A copyright notice provides information about usesthat are acceptable and includes details aboutcontacting the copyright owner for consent to usethe work in other material.

Some books use the words ‘All Rights Reserved’.This is not necessary but if you are publishing insome South American countries it may beadvisable. If you think that your stories will be firstpublished overseas seek advice from a suitablepractitioner on appropriate wording.


The following is an example of a copyright notice fora literary work:

© Terri Janke, 1999*

* The date of creation or the date the work wasfirst published.

The copyright in the poem ‘Journey ’, written by TerriJanke, is published by IAD Press in the anthologyUntreated: Poems by Black Writers. The writer ownsthe copyright in the poem, and the publisher ownsthe copyright in the collection.

The copyright for this anthology is noted as follows:

© Collection IAD Press, 2001.

The following is an example of a notice for clan owned traditional stories:

Traditional story: Torres Strait Islands

This version: © A. Murray, 2002. This version ismade with the permission of the clan. It may notbe reproduced in any form without the permissionof the writer and the clan concerned.

For more information on recommended copyrightwording for publications, see the Style Manual forAuthors, Editors and Printers.60

Moral rights notice

If your work is to be distributed in New Zealand andBritain, it is also a good idea to include a noticeasserting your moral rights.

The creator(s) assert their moral rights.

When is copyrightinfringed?It is an infringement of copyright to copy or dealwith a copyright work without the consent of thecopyright owner.

A person will infringe copyright in a literary work ifhe or she publishes, adapts, reproduces the work in

material form or communicates the work to thepublic without permission from the copyright owner.

It is also an infringement of copyright to directlycopy a substantial part of a literary work. A ‘substantial’ part of a work does not necessarilyrefer to a large part of the work. The court will lookfor striking similarities between the original workand the infringing copy, and assess the quality ofwhat was taken.

It is also an infringement of copyright to import aninfringing work into Australia for sale or hire.

Some exceptions to copyright infringement are:

Fair dealings provisions

The argument of ‘fair dealings’ can be a defence toallegations of copyright infringement. Copyright isnot an infringed if the work is used for:

• research or private study purposes61

• criticism or review, whether of that work or ofanother work, and a sufficient acknowledgmentof the work is made62

• the purpose of, or associated with the reportingof news in a newspaper or magazine and asufficient acknowledgment of the work is made;or for the purpose of, or associated with thereporting of news by means of broadcasting orin a cinematograph film63

• judicial proceedings of a report of judicialproceedings, or for the purpose of the giving ofprofessional advice by a legal practitioner.64

Crown use of literary work

The Crown may use a copyright work withoutpermission of the copyright owner where the usemade is ‘for the services of the Crown’. The author is still entitled to payment for use and the governmentmust contact him or her as soon as possible tonegotiate this.

. . .Library copying

Libraries and archives can make copies ofcopyright works under certain circumstances inaccordance with statutory procedures.65

Educational copying

Educational institutions such as schools anduniversities can make multiple copies of printmaterial, and can copy television and radioprograms for education purposes. They musthowever pay statutory licence fees to the relevantcollecting societies. Authors should be aware ofthese schemes, as there may be royalties payablein certain circumstances. Contact the CopyrightAgency Limited, Screenrights or Viscopy where applicable.

Lending rightsPublic Lending Right

Public Lending Right (PLR) is based on the conceptthat creators and publishers may incur a loss ofincome when copies of their books are freelyavailable in public libraries, and are borrowed by the general public who might otherwisepurchase the book.

Australian authors and publishers are eligible for payments under the scheme provided they meet eligibility criteria and satisfy specificrequirements. Claims are made to the Department of Communications, InformationTechnology and the Arts. For information onguidelines visit the website www.dcita.gov.auIt is free for authors to register, however you must be registered to receive any payments.

Educational lending right

Educational Lending Right (ELR) is a program of the Commonwealth Government’s Book Industry Assistance Plan and will be funded from2000–01 to 2003–04. ELR makes payments toeligible Australian authors and publishers whosebooks are held in educational lending libraries. It complements the PLR. For information onguidelines visit the website www.dcita.gov.au It is free for authors to register, however you must be registered to receive any payments.

Further copyrightinformationCopyright law may impact on the rights ofIndigenous people to their traditional knowledge.It is therefore important for Indigenous writers toknow about copyright laws.

For general information on copyright laws see:

• Australian Copyright Council www.copyright.org.au

• Arts Law Centre of Australiawww.artslaw.com.au

• Viscopywww.viscopy.com.au

APRA – Performing rights for composersThe Australasian Performing RightsAssociation (APRA) administers theperforming rights in the music ofcomposers, songwriters and publishersin Australia and New Zealand. Theseare the rights of performance in publicand communication to the public.

The rights of performance in publicoccur mostly when music is played onradio, television, in music venues andother venues that play music (includingincidental music), and businesses(including online businesses) which use music.

The right of communication to thepublic includes any method ofcommunicating music to the publicincluding television, radio, Internet,cable services and other media.

APRA also manages the reproductionrights’ licensing business of theAustralasian Mechanical CopyrightOwners Society (AMCOS).

For more information about APRA visitits website www.apra.com.au

ViscopyViscopy is the copyright collectingsociety for visual artists in Australia andNew Zealand. Established in 1995,Viscopy is the main point of contact forthose wishing to clear copyright for thereproduction of artistic works.

Viscopy has about 2 000 Australianartist members, half of which areIndigenous artists and their estates.

Viscopy negotiates copyright-relatedtransactions between the artist and theuser for reproductions of artistic work inadvertising, publications, newspapersand electronic media such as television,cinema, Internet and CD-ROM.

Viscopy handles associated contracts,negotiations, legal requirements andthe distribution of royalties.

There is no membership fee to joinViscopy. However, an administrativecharge applies to clearances. Paymentsare then made to artists half-yearly.

For more information on Viscopy visittheir website www.viscopy.com.au

C O P Y R I G H T - 27

Copyright collecting agenciesMost copyright owners lack the time and necessarybargaining power to manage and exploit theircopyright works. For management andadministration of copyright, there are severalcollecting societies that have been established withinAustralia. These collecting societies administer therights of members for a fee or share of the royalties.Some of them such as CAL and Screenrights have alegislative basis for collecting royalties. Others arevoluntary organisations which artists are required tojoin. CAL, Screenrights and APRA are the mostrelevant collecting societies for authors.

CAL – Copyright Agency LimitedThe Copyright Agency Limited (CAL) isan Australian statutory collectingagency whose role is to provide abridge between creators and users ofcopyright material.

CAL collects and distributes fees onbehalf of authors, journalists, visualartists, photographers and publishers,operating as a non-exclusive agent tolicense the copying of works to thegeneral community.

CAL administers licences for the copyingof print material by educationalinstitutions, government agencies,corporations, associations, places ofworship and other organisations.

Authors must register to receivepayment directly from CAL. If notregistered, payment may go to thepublisher who is then responsible forpassing on the author’s share underterms of the publishing contract.

For more information on CAL visit theirwebsite www.copyright.com.au

ScreenrightsScreenrights is a copyright collectingsociety for screenwriters, producers,distributors, music copyright owners,copyright owners in artistic works andsound recordings, and other rightsholders in film and television.

Screenrights manages rights on behalfof copyright owners in film andtelevision, licensing the use of theirwork in circumstances where it isdifficult or impossible to do so on anindividual basis.

Screenrights also administers theeducational copying license. This allowseducational institutions to copy fromradio and television, provided they pay a fee to copyright owners.Screenrights monitors copying, collectsmoney and distributes this income tothe copyright owners.

In addition, Screenrights collectsroyalties being held by other societiesadministering rights in their territories.All money collected is distributed to thecopyright owners after deduction ofadministrative overheads.

For more information on Screenrightsvisit their website www.screen.org

Screenrights has also established a website for educators atwww.enhancetv.com.au

Enhancetv lets teachers know aboutupcoming programs relevant to theircurriculum and provides teachingresources for using television and radioin educational contexts.


. . .

F O L L O W U P - 29

• The cultural contribution of Indigenous people to literature should be valued, acknowledged and remunerated.

• Local community protocols and protocolsassociated with a specific work should alwaysbe respected and observed.

• Indigenous world views and customary lawsshould be respected in contemporary artisticand cultural life.

Publishing stories and ideas

• The effects of a published Indigenous story – whether sacred, closed or general – shouldbe discussed prior to publication.

Once publicly released, it is difficult to charthow a story might be embraced, adopted andingrained within dominant and other cultures.

Indigenous controlIndigenous people have the right to control the useand expression of their cultural heritage.

• Discuss use of Indigenous cultural heritagematerial with Indigenous people in authority.

• Involve Indigenous people in all stages ofwriting projects, including Indigenous writers,community members, storytellers and editors.

Communication, consultation and consent• Consult with Indigenous people on the use and

representation of their Indigenous heritage.

• Prior to use, inform Indigenous people about theimplications of consent.

• Consultation should address the communalnature of Indigenous cultural expression.

• Has sufficient time been allowed forconsultation? Each community will need a reasonable period of time to consider and consult within their communities. Do notexpect to have a reply to a question in a day or a week.

Creation stories

• Speak to elders and other people in authority about using creation stories. It is not acceptable to source material from otherbooks without considering the rights ofIndigenous people.

• Seek permission prior to writing or re-tellingIndigenous creation stories.

• If a writer is not Indigenous, he or she shouldconsider whether they should be reinterpretingcreation stories – or whether an appropriateIndigenous person can be identified to tell andrecord the story.

• Identify appropriate information and authoritybodies to discuss ideas for literary works – forexample, language centres or Indigenouspublishing houses if the idea involves adaptationor translation of a creation story.

Recording oral stories

• Consult with relevant Indigenous people, familymembers, Indigenous organisations and otherindividuals relevant to the project.

• Make draft copies available before publicationand allow relevant Indigenous people andfamily members to comment on drafts.

• Be aware that the inclusion of personal materialmay be sensitive.

• Consider who should own copyright in thepublished story.

• Clear publication rights with relevant people.

Writing life stories

• If you are writing about living people, it isimportant to get their consent and work closelywith them. Talk about copyright and intellectualproperty issues.

If it is primarily their story (for example, if transcribed from tapes), then the life storysubject should own copyright.

If it is a collaboration (for example, where the writer has brought his or her skill to the work), then there may be some scope for sharing copyright.

. . .


Applying the protocolsProtocols are about people’s value systemsand their cultural beliefs.66

The protocols in this guide are flexible. You can usethem to develop protocols for your writing project,program or practice, and Indigenous languagegroup, region, clan or community.

It is important to read all the preceding sections ofWriting Cultures before applying the protocols.Follow up can then be the main point of referencewhen returning to the guide at a later date, or in theplanning stage of an Indigenous writing project.

Follow up provides a checklist of key points toconsider when developing protocols for a literatureproject, or in your own writing practice. It offersdifferent and more specific information than thepreceding sections. We therefore suggest you usethe points outlined here together with the Principlesand Protocols, and Copyright sections.

The following principles are a framework forrespecting Indigenous heritage:

• Respect

• Indigenous control

• Communication, consultation and consent

• Interpretation, integrity and authenticity

• Secrecy and confidentiality

• Attribution

• Proper returns

• Continuing cultures

• Recognition and protection.

RespectPeople working in Indigenous literature areencouraged to respect that:

• Indigenous Australians, the Aboriginal and Torres Strait Islander people, are the originalinhabitants of Australia.

• It is important to seek consent from andacknowledge the Indigenous country andcustodians at the site of each spoken wordperformance, launch or literary event, and in theacknowledgment of a published text about aspecific Indigenous country.

• Indigenous people have the right to own andcontrol their heritage – including Indigenousbody painting, stories, songs, dances, images,traditional knowledge and other forms of cultural expression.

• Indigenous cultures are living cultures.

• The diversity of Indigenous culture should beacknowledged. Culture varies from country tocountry and from clan to clan.

• Indigenous people have the right to berepresented by Indigenous people of their choice.

follow up


• The publishing contract should be explained toIndigenous writers and, if necessary, a translatorshould be used to explain the major issues of the contract.

• Special attention should be paid to clearing anysuggestions or changes made through theeditorial process.

• When selecting illustrations for the cover, consultwith the Indigenous author, artist and otherIndigenous people to check the culturalappropriateness of the image.

Where possible, an Indigenous artist should becommissioned, or the work of an Indigenousartist licensed for a fee – no less than the ratecharged by Viscopy.

Secrecy and confidentiality• The right of Indigenous people to keep secret

and sacred their cultural knowledge should be respected.

• Indigenous people have the right to maintainconfidentiality about aspects of their personaland cultural affairs.

Representation of deceased people

• In many Indigenous communities, the reproductionof deceased people’s names and images inbooks is offensive to Indigenous beliefs.

• Consult with the deceased’s family or communityso that the appropriate protocols are observed.

Secret and sacred material

• Secret and sacred material refers to informationthat is restricted under customary laws.

• The publication of secret and sacred materialmay be a transgression of Indigenous law.

• Some people question whether it is appropriateat all to publish sensitive material in a formwhich can be disseminated widely.

Personal privacy

• The personal privacy of Indigenous peopleshould be respected.

• Personal and confidential information must notbe disclosed without permission from allIndigenous people affected by the disclosure.

• It is the responsibility of those putting togetherwriting projects to discuss any restrictions on useof the information with relevant Indigenouspeople and groups.

Attribution• Indigenous people should be given proper

credit or appropriate acknowledgment for theirrole in the development and use of Indigenouscultural material.

• Indigenous people should be attributed for theuse of their cultural heritage material in stories.

• Ensure that proper attribution is given to thewriter and the source community, or otherrelevant Indigenous people.

Proper returns• Indigenous people have the right to receive

proper returns for their contribution and the use of their cultural material, including copyrightand royalties.

• Have fees or other benefits been negotiatedwith the informers, storytellers, writers and anyrelevant traditional custodians?


• If writing about a deceased person, speak tothe family or clan representatives to seek theirpermission and consult on issues of representation.

• If adapting oral stories and using true accountsfor novels, consent should be sought from theperson who is telling the story, elders and/orother persons in authority.

• Ensure that all collected materials such asphotographs, recordings, copies of stories, CD-ROMs, books, radio interviews andnewspaper clippings are returned to the originalinformant and/or family and community.

Interpretation, integrity and authenticity• Consult with Indigenous people about the integrity

and authenticity of their Indigenous heritage.

• Indigenous individuals and communities shouldhave control over how their cultural material is presented.

• Make sure the writing is based on soundresearch and that facts are credible.

Interpretation

• Consider reasons for writing or commissioning a work. Reflect on whose perspectives ofAboriginality are being represented in any methodology.

• Be responsible for your representation ofIndigenous cultures. Consider the following:

- How will your writing affect the Indigenousgroup it is based on?

- Does it empower Indigenous people?

- Does it expose confidential, personal and/orsensitive material?

- Does it reinforce negative stereotypes?

• Have you used appropriate terminology?

• The cover and illustrations of the book should bechecked by the author to ensure they areauthentic and not culturally offensive to otherIndigenous groups.

Editing

• Indigenous individuals and communities shouldhave the final approval on how the written formof their cultural material is presented. Reasonabletime should be given for checking drafts.

• Once approval is given, any future editingshould be checked again with the relevantIndigenous people.

• The use of Indigenous people as writers andeditors of manuscripts, books and reports aboutIndigenous cultural material is encouraged.

Publishing

• Publishers should not assume that traditionalIndigenous stories are free to be exploited. It is necessary to consult with relevant Indigenouspeople for permission. If agreed, publishers and collecting societies should negotiate withIndigenous people on appropriate royalties for use.

• Publishers should make relevant inquiries toensure a writer who is promoted and marketed as ‘Indigenous’ is an IndigenousAustralian person. The Aboriginal and TorresStrait Islander Commission’s test for Aboriginalityis recommended.

• Written contracts conforming to the ASAMinimum Standards are encouraged.

• Indigenous writers should be given theopportunity to consider contracts and obtainproper legal advice.

. . .


• Writers and publishers are encouraged to usewritten agreements.

• A person will infringe copyright in a literarywork if he or she does any of the followingwithout permission from the copyright owner:

- publishes the work

- reproduces the work in material form

- adapts the work

- communicates the work to the public.

Statutory exceptions include the purposes ofcriticism or review, and incidental filming.

• Under the educational statutory licensingschemes, authors may be entitled to royalties for use of their works. CAL and Screenrights (the Audio Visual Copyright Society) collect and distribute royalties to author andscreenwriter members.


• The issue of copyright ownership of the material form of cultural expression should bediscussed up-front.

• Indigenous people have the right to control thecommercial exploitation of their cultural material.

• Indigenous people have the right to share in thebenefits from any commercialisation of theircultural material.

• Check whether benefits other than royalties aresought by or due to Indigenous people.

• Have you registered the work with the CopyrightAgency Ltd (CAL), Public Lending Right (PLR) andEducational Lending Right (ELR)?

Continuing cultures• Consultation is a continuous process.

• Indigenous cultures are dynamic and evolving,and the protocols within each group andcommunity will also change.

• Have cultural protocols been considered andincluded in any future licence agreements foruse of the work?

• Indigenous people have a responsibility toensure that the practice and transmission ofIndigenous cultural expression is continued forthe benefit of future generations.

Recognition and protection• Indigenous people have the right to protection of

their Indigenous heritage.

• The Indigenous author should own copyright inhis or her literary work, giving him or her controlof reproduction and dissemination of the work.

Copyright• The author is generally the copyright owner of a

literary work. Exceptions include an author whois an employee under a contract of service.

• The work must be original and must be reducedto material form.

• To be original, for the purpose of copyrightprotection, the author must have appliedsufficient skill, labour and judgment to create the work.

• Authors do not need to register for copyright protection.

• The copyright owner of a literary work has theexclusive right to:

(i) reproduce the work in a material form

(ii) publish the work

(iii) perform the work in public

(iv) communicate the work to the public

(v) make an adaptation of the work

(vi) do any of the above in relation to anadapted literary work.

• Copyright lasts for 50 years after the death ofthe artist.

• Ideas and themes are generally not protected. It is the expression that is protected.

• The Indigenous author who incorporatestraditional ritual knowledge in his or her workhas a special obligation to the clan whenexercising copyright in the work.

• The author has moral rights to his or her literary work. This includes the right of integrityand attribution.

• When reproducing and publishing literaryworks, it is necessary to get copyright clearancefrom the author.

. . .

R E F E R E N C E S - 35

24 Jackie Huggins, ‘Respect v Political Correctness’, AustralianAuthor, Spring 1994, vol. 26, no. 3, page 12.

25 Pat Mamanyjun Torres, ‘Interested in writing about IndigenousAustralians?’, Australian Author, Spring 1994, vol. 26, no. 3,page 24.

26 This is what happened in the case of Foster v Mountford wherePitjantjatjara men took action against the publication of a bookcontaining sacred men’s material.

27 Colin Golvan, Bruce Sims and Jill Walsh, A Basic Guide toCopyright, Magabala Books, 1997, page 16.

28 Pat Mamanyjun Torres, ‘About the Word Dreamtime: An Aboriginal Woman’s Perspective – Pat Mamanyjun Torres’,Dreaming On-Line, January 2000.


30 Anita Heiss, Writing About Indigenous Australia, discussionpaper, Australian Society of Authors, Sydney, viewed 9 April 2002, www.asauthors.org

31 Style Manual for Authors, Editors and Printers, 6th edn,Commonwealth of Australia, Canberra, 2002, page 413.

32 Anita Heiss, ‘Appropriating Our Black Voice’, Network News,Queensland Community Arts Network, March 1998, page 31.

33 Sally Morgan, email to Terri Janke & Company, August 2001.

34 Mary-Ann Hughes, ‘An Issue of Authenticity: Editing Texts by Aboriginal Writers’, Southerly, no. 58, Winter 1998, pages 48–58.

35 Sally Morgan, email to Terri Janke & Company, August 2001.

36 Jane Arms, Australia Council paper referenced in Anita Heiss,‘Editing Aboriginal Writing’ (Chapter 3), ‘Dhuuluu-Yala (talkstraight): Publishing Aboriginal Writing in Australia’, PhD thesis,University of Western Sydney, Nepean, 2001.

37 Howard Pedersen with Banjo Woorunmurra, Jandamarra andthe Bunuba Resistance, Broome, 1995.

38 Willa McDonald, ‘Tricky Business, Whites on Black Territory’,Australian Author, vol. 29, no. 1, Autumn 1997, page 14.

39 Sandra Phillips, telephone conversation with Terri Janke,September 2001.

40 Sam Cook is referenced in Sandra Phillips, ‘A Child’s Dreaming– Looking at Illustrated Indigenous Stories for Children’, Kaltja Now – Indigenous Arts Australia, Wakefield Press inassociation with the National Aboriginal Cultural Institute –Tandanya, 2001, page 149.

41 Josie Douglas, ‘Talkin’ Straight’, Message Stick event at theSydney Opera House, 27 May 2001.

42 Tex and Nelly Camfoo, ed. Gillian Cowlishaw, Love Against theLaw: The Autobiographies of Tex and Nelly Camfoo, AboriginalStudies Press, 2000.

43 14 ALR 71, 1997.

44 Lynne Spender, ‘Aboriginal and Torres Strait Islander Writing’,Australian Author, vol. 26, no. 3, Spring 1994, page 10.

45 Susan Wyndham, ‘The Mystery of Marlo Morgan Down Under’, The Australian Magazine, 29-30 October 1994, pages 26–28.

46 Robert Eggington, Message Stick: A Report of Mutant MessageDown Under, Dumbartung Aboriginal Corporation, BounuhWongee, 1995.

47 NSW Ministry for the Arts, Guidelines 2001–2002, Sydney,2000, pages 103–104.

48 Anita Heiss, Australian Copyright vs. Indigenous Intellectual andCultural Property Rights, discussion paper, Australian Society ofAuthors, Sydney, viewed 9 April 2002, www.asauthor.org

49 Commonwealth Government of Australia, Copyright Act 1968,Sections 31(1)(a)(i) and (b)(i).

50 Indigenous works are not easily divided into categories ofcontemporary or traditional, despite common perceptions. In Writing Cultures, ‘traditional’ refers to works that have drawnfrom a pre-existing cultural base.

51 Section 31, Copyright Act 1968 (Cth).



54 Bulun Bulun & M* v R & T Textiles Pty Ltd (1998), 41 IntellectualProperty Reports 513. The M* refers to a deceased person andthat is how the cultural protocol advises speaking of him.

55 Commonwealth Government of Australia, Copyright Act, 1968,Section 33.

56 Commonwealth Government of Australia, Copyright Act 1968(Cth), Section 194(1).

57 Commonwealth Government of Australia, Copyright Act 1968(Cth), Section 194AA.

58 Commonwealth Government of Australia, Copyright Act 1968(Cth),Sections 195AJ, 195 AK and 195 AL., ACT, 2000.

59 Colin Golvan, Bruce Sims and Jill Walsh, A Basic Guide toCopyright, Magabala Books, 1997, page 16.

60 Style Manual for Authors, Editors and Printers, 6th edn,Commonwealth of Australia, Canberra, 2002, page 413.






66 Doreen Mellor, telephone consultation, 31 May 2002.

. . .references


1 Anita Heiss, ‘Appropriating Our Black Voice’, Network News,Queensland Community Arts Network, no.1,1998, pages 30–33.

2 Terri Janke, Our Culture: Our Future – Report on AustralianIndigenous Cultural and Intellectual Property Rights, Michael Frankel and Company, written and published undercommission by the Australian Institute of Aboriginal and TorresStrait Islander Studies and the Aboriginal and Torres StraitIslander Commission, Sydney, 1999.

3 Bruce Pascoe, Write No Appeasement: Kaltja Now –Indigenous Arts Australia, Wakefield Press in association with the Tandanya National Aboriginal Cultural Institute, 2001, page 146.

4 Glenys Ward, Wandering Girl, Magabala Books, Broome, 1998.

5 Kim Scott, Benang: From the Heart, Fremantle Arts Centre Press,Fremantle, 1998.

6 Kim Scott, email to Terri Janke & Company, 27 June 2001.

7 Terri Janke, Our Culture: Our Future.



10 Report of the Sub-Commission on Prevention of Discriminationand Protection of Minorities, 46th session, Draft Declaration onthe Rights of Indigenous Peoples, United Nations Documents,E/CN.4/1995/2 and E/CN.4/Sub 2/1994/56.

11 The Mataatua Declaration was developed at the First InternationalConference on the Cultural and Intellectual Property Rights ofIndigenous Peoples, 12–18 June 1993, at Whakatane,Aotearoa, New Zealand. A full text of the Declaration is cited inTerri Janke, Our Culture: Our Future, pages 306–310.

12 Erica Irene Daes, Final Report on the Protection of the Heritageof Indigenous Peoples, United Nations DocumentE/CN.4/Sub.2/1995/26. The full text, as adopted andelaborated on by ATSIC’s Indigenous Reference Group, is citedin Terri Janke, Our Culture: Our Future, pages 273–277. Seealso Erica Irene Daes, Study of the Protection of the Cultural andIntellectual Property of Indigenous Peoples, United NationsEconomic and Social Council, Geneva, 1993.

13 http://www.wipo.int/globalissues

14 http://www.wipo.int/globalissues

15 Section 6, Model Law for the Protection of TraditionalKnowledge and Expressions of Culture, South PacificCommunity, Noumea, 2002.

16 Doreen Mellor, Valuing Art, Respecting Culture: Protocols for Working with the Australian Indigenous Visual Arts and Craft Sector, with legal section by Terri Janke, published by the National Association for the Visual Arts, Sydney, 2001,page 13.

17 National Directory of Aboriginal and Torres Strait IslanderOrganisations, Directories Australia, Sydney, 2001. Available through Crown Content, (03) 9329 9800 orwww.crowncontent.com

18 Registered under the Aboriginal Councils and Associations Act1976 (Cth) or other relevant legislation.

19 Bruce Pascoe, email to Terri Janke & Company, 15 June 2001.

20 Kim Scott, email to Terri Janke & Company, 27 June 2001.


22 Pat Mamanyjun Torres, email to Terri Janke & Company, 27 September 2001.

23 Anita Heiss, ‘Writing About Indigenous Australia: Some Issues toConsider and Protocols to Follow: A Discussion Paper ’,Australian Society of Authors, published online atwww.asauthors.org

B I B L I O G R A P H Y - 37

Mary Ann Hughes, ‘An Issue of Authenticity: EditingTexts by Aboriginal Writers’, Southerly, vol. 58, no. 2, Winter 1998, pages 48–58.

Nadia Wheatley, ‘Black and White Writing:The Issues’, Australian Author, vol. 26, no. 3,Spring 1994, pages 20–23.

Patricia Mamanyjun Torres, email to Terri Janke &Company, 27 September 2001.

Patricia Mamanyjun Torres, ‘Interested in Writingabout Indigenous Australians?’ Australian Author,vol. 26, no. 3, Spring 1994, pages 24–25.

Sally Morgan, Centre for Indigenous History and the Arts, email to Terri Janke & Company, 15 August 2001.

Sandra Phillips, ‘A Child’s Dreaming’ – Looking atIllustrated Indigenous Stories for Children’, KaltjaNow – Indigenous Arts Australia, Wakefield Pressin association with the National Aboriginal CulturalInstitute – Tandanya, 2001, pages 147–152.

Style Manual for Authors, Editors and Printers,6th edn, Department of Finance and Administration,Commonwealth of Australia, Canberra, 2002.

Terri Janke, Our Culture: Our Future – Report onAustralian Indigenous Cultural and IntellectualProperty Rights, Michael Frankel & Company,written and published under commission by theAustralian Institute of Aboriginal and Torres StraitIslander Studies and the Aboriginal and Torres StraitIslander Commission, Sydney, 1999.

Willa McDonald, ‘Tricky Business, Whites on BlackTerritory’, Australian Author, vol. 29, no.1, Autumn 1997, pages 11–14.


. . .bibliography

Bruce Pascoe, email to Terri Janke & Company,15 June 2001.

Bruce Pascoe, ‘Write No Appeasement ’, Kaltja Now – Indigenous Arts Australia,Wakefield Press in association with the NationalAboriginal Cultural Institute – Tandanya, Adelaide,2001, pages 144–146.

Colin Golvan, Bruce Sims and Jill Walsh, A Basic Guide to Copyright, Magabala Books,Broome, 1997.

Dr Anita Heiss, ‘Appropriating Our Black Voice’,Network News, Queensland Community ArtsNetwork, March 1998, pages 30–33.

Dr Anita Heiss, – ‘Editing Aboriginal Writing’,Dhulluu-Yala (talk straight): PublishingAboriginal Writing in Australia, PhD thesis,University of Western Sydney, 2001.

Doreen Mellor, Valuing Art, Respecting Culture:Protocols for Working with the AustralianIndigenous Visual Arts and Craft Sector,published by the National Association for the VisualArts, Sydney, 2001.

Dr Anita Heiss, ‘Who’s been writing Blak?’, Kaltja Now – Indigenous Arts Australia,Wakefield Press in association with the NationalAboriginal Cultural Institute – Tandanya, Adelaide,2001, pages 138–144.

Gail Cork, email to Terri Janke & Company, 26 September 2001.

Howard Pedersen with Banjo Woorunmurra,Jandamarra and the Bunuba Resistance,Magabala Books, Broome, 1995.

Jackie Huggins, ‘Respect v Political Correctness’,Australian Author, vol. 26, no. 3, Spring 1994,pages 12–14.

Kim Scott, email to Terri Janke & Company,27 June 2001.

Lester Bostock, The Greater Perspective: Protocoland Guidelines for the Production of Film andTelevision on Aboriginal and Torres Strait IslanderCommunities, Special Broadcasting Services, 2nd edn,1997.

Lynne Spender, ‘Aboriginal and Torres Strait IslanderWriting’, Australian Author, vol. 26, no. 3,Spring 1994, page 10.

C O N T A C T S - 39

Department ofCommunications, InformationTechnology and the Arts

GPO Box 2154Canberra ACT 2601Tel: (02) 6271 1000Fax: (02) 6271 1901Email: [email protected]: www.dcita.gov.au

NSW Ministry for the Arts

PO Box A226Sydney South NSW 1235Tel: (02) 9228 5533Toll Free (NSW): 1800 358 594Fax: (02) 9228 4869Email: [email protected]: www.arts.nsw.gov.au

Copyright and legal

Arts Law Centre of Australia

The Gunnery43–51 Cowper Wharf RoadWoolloomooloo NSW 2011Tel: (02) 9356 2566Toll Free: 1800 221 457Fax: (02) 9358 6475Email: [email protected]: www.artslaw.com.au

Australian Copyright Council

PO Box 1986Strawberry Hills NSW 2012Redfern NSW 2016Tel: (02) 9318 1788Fax: (02) 9698 3536Email: [email protected]: www.copyright.org.au

Indigenous Cultural andIntellectual Property website

Web: www.icip.lawnet.com.au

Copyright collectingsocieties

Australasian Performing Right Association - APRA

Locked Bag 3665St Leonards NSW 2065Tel: (02) 9935 7900Fax: (02) 9935 7999Email: [email protected]: www.apra.com.au

Copyright Agency Limited – CAL

Level 19, 157 Liverpool StreetSydney NSW 2000Tel: (02) 9394 7600Fax: (02) 9394 7601Email: [email protected]: www.copyright.com.au

Screenrights

PO Box 1248Neutral Bay NSW 2089Tel: (02) 9904 0133Fax: (02) 9904 0498Email: [email protected]: www.screen.org

Viscopy

Level 1, 72–80 Cooper StreetSurry Hills NSW 2010Tel: ((02) 9280 2844Fax: (02) 9280 2855Email: [email protected]: www.viscopy.com

Indigenous publishers

Institute of AboriginalDevelopment Press – IAD Press

PO Box 2531Alice Springs NT 0871Tel: (08) 8951 1311Fax: (08) 8953 1884Email: [email protected]

Magabala Books

PO Box 668Broome WA 6725Tel: (08) 9192 1991Fax: (08) 9193 5254Email: [email protected]: www.magabala.com

Aboriginal Studies Press AIATSIS

GPO Box 553Canberra ACT 2601Tel: (02) 6246 1111Fax: (02) 6261 4282Email: [email protected]: www.aiatsis.gov.au

Indigenousorganisations

Aboriginal and Torres StraitIslander Commission – ATSIC

PO Box 17Woden ACT 2606Tel: (02) 6121 4000Toll Free: 1800 079 098Fax: (02) 6281 0722Web: www.atsic.gov.au

Australian Institute forAboriginal and Torres StraitIslander Studies – AIATSIS

GPO Box 553Canberra ACT 2601Tel: (02) 6246 1111Fax: (02) 6261 4286Email: [email protected]: www.aiatsis.gov.au

Gadigal Information Service

PO Box 966Strawberry Hills NSW 2012Tel: (02) 9564 5090Fax: (02) 9564 5450Email: [email protected]: www.gadigal.org.au

. . .


contacts

Arts policy and funding

Aboriginal and Torres Strait Islander Arts Board,Australia Council

PO Box 788Strawberry Hills NSW 2012Tel: (02) 9215 9065Fax: (02) 9215 9061Toll Free: 1800 226 912Email: [email protected]: www.ozco.gov.au

Arts NT

GPO Box 1774Darwin NT 0801Tel: (08) 8924 4400Fax: (08) 8924 4409Email: [email protected]: www.nt.gov.au/cdsa/dam

Arts Queensland

GPO Box 1436Brisbane QLD 4001Tel: (07) 3224 4896Toll Free (Qld): 1800 175 531Fax: (07) 3224 4077Toll Free (Qld): 1800 175 532Email: [email protected]: www.arts.qld.gov.au

Arts Queensland – Aboriginal and Torres Strait Islander Unit

PO Box 5300Cairns Mail Centre QLD 4870Tel: (07) 4048 1411Fax: (07) 4048 1410Email: [email protected]: www.arts.qld.gov.au

Arts SA

GPO Box 2308Adelaide SA 5001Tel: (08) 8463 5444Fax: (08) 8463 5420Email: [email protected]: www.arts.sa.gov.au

Arts Tasmania

GPO Box 646Hobart TAS 7001Tel: (03) 6233 7308Fax: (03) 6233 8424Email: [email protected]: www.arts.tas.gov.au

Arts Victoria

Private Bag No. 1South Melbourne VIC 3205Tel: (03) 9954 5000Toll Free (Vic): 1800 134 894Fax: (03) 9686 6186Email: [email protected]: www.arts.vic.gov.au

Arts WA

PO Box 8349Perth Business Centre WA 6849Tel: (08) 9224 7310Toll Free (WA): 1800 199 090Fax: (08) 9224 7311Email: [email protected]: http://hosted.at.imago.

com.au/artswa/

Terri Janke & Company would like to acknowledgethe role of Dr Anita Heiss in developing this guide.Dr Anita Heiss undertook the task of peer reviewingthis document and provided her thesis for ourreading. We are also grateful to the AustralianSociety of Authors whose Indigenous Protocols weresourced for the writing of this guide.

We thank Helena Zilko whose contribution as editorassisted in bringing the five protocol guides into acomplementary set.

We also acknowledge the contribution of thefollowing people who provided comments on earlydrafts. Their feedback was invaluable in thedevelopment of Writing Cultures.

• Melissa Lucashenko – Author

• Penelope Lee – Aboriginal Studies Press

• Josie Douglas – IAD Press

• Sally Morgan – Centre for IndigenousHistory and the Arts

• Magabala Books

• Bruce Pascoe – Author

• Pat Mamanyjun Torres – Author

• Bain Stewart and Leah Purcell

• Sandra Phillips – Editor

• Kim Scott – Author

• Gail Cork – Manager, Literature Board, Australia Council

• Jose Borghino – Australian Society of Authors

• Copyright Agency Limited

• Director and staff of Aboriginal and Torres Strait Islander Arts, Australia Council

The Aboriginal and Torres Strait Islander Arts Board thanks the Literature Board of the AustraliaCouncil for contributing towards the publishing ofWriting Cultures.

. . .

A C K N O W L E D G M E N T S - 41

acknowledgments


Goolarri Media Enterprises

PO Box 2708Broome WA 6725Tel: (08) 9192 1325Fax: (08) 9193 6407Email: [email protected]: www.goolarri.com.au

Island Coordinating Council

PO Box 501Thursday Island QLD 4875Tel: (07) 4069 1446Fax: (07) 4069 1868

Torres Strait Islander Media Association

PO Box 385Thursday Island QLD 4875Tel: (07) 4069 1524Fax: (07) 4069 1886Email: [email protected]

Torres Strait Regional Authority

PO Box 261Thursday Island QLD 4875Tel: (07) 4069 0700Fax: (07) 4069 1879Email: [email protected]: www.tsra.gov.au

Literary organisations

Australian Society of Authors

PO Box 1566Redfern NSW 2012Tel: (02) 9318 0877Fax: (02) 9318 0530Email: [email protected]: www.asauthors.org
